When someone dies, you may need to apply for probate before you can administer and distribute their estate. This is usually the case unless the deceased had jointly owned assets that will pass to their surviving spouse or they only had a relatively small sum of savings and no other assets.
If you need to apply for probate, the process will differ depending on whether the deceased left a Will.
This guide will explore what you need to do if the deceased left a Will.
Applying for probate when the deceased left a Will
If the deceased left a Will, then you can only apply for probate if you’re named as an executor in the Will itself or a codicil – an update to it.
In most cases, the person who died will have told you that you’re an executor when they wrote their Will.
Being named as an executor doesn’t necessarily mean you’ll also be a beneficiary and inherit from the deceased’s estate. However, this often happens when parents name one or more children as executors.
Locating the original Will
The first thing you’ll need to do is find the original Will. When you apply for probate, you must send the original Will with your application. You won’t get the original Will back. Instead, the probate registry keeps it, and it becomes a public record.
In most cases, the person who has died will have told you and any other named executors where the original Will is kept.
Wills are often stored:
- At the deceased’s home, sometimes in a safe.
- Securely with the solicitor or probate practitioner with whom they wrote the Will.
- At the national probate registry. If the Will is here, you will need to provide the death certificate and identification to prove you’re the executor.
What if I cannot understand a Will?
You should get help from a professional. Contact LawPlus Solicitors here to get assistance with applying for probate.
What if I cannot find the original Will?
You will need to provide additional documentation alongside your probate application. Contact LawPlus solicitors here for assistance with this and the whole probate application process.
What if I find more than one Will?
People often make changes to their Will for various reasons. As such, when locating the deceased’s Will, you may well come across more than one document.
Only the most recent Will is legally binding and valid in such cases. However, you shouldn’t destroy any earlier Wills until you have received your grant of probate.
What to do before applying for probate when the deceased left a Will
Before applying for probate, you will need to estimate the value of the deceased’s estate, which will help you calculate how much, if any, Inheritance Tax you will need to pay.
You must do this even if the Will assumes specific assets have a particular value. However, the outcome of your estimation is only for Inheritance Tax purposes. You must not use your estimate to change how you distribute the estate. For example, if the deceased wrote their Will when their house was worth £200,000, they might have left the house to one child and £200,000 in cash to another. If the property is today worth more, you cannot sell the house to split the proceedings equally unless the Will explicitly states that’s what you should do.
What if there’s more than one executor named in the Will?
Sometimes, people name more than one executor in their Will.
Not all executors need apply for probate; however, up to four can be named on the probate application. Even if not all executors wish to apply for probate, they must agree on who will.
Where there are several named executors in the Will, but only one applies for probate, they must provide evidence that either:
- All other executors agreed on them being the sole applicant for probate
- They tried to contact all other executors before applying for probate
What if I’m named as an executor along with others, but I don’t know them?
The best thing to do is call the Probate Call Centre on 0300 303 0648, who will provide guidance on what you should do.
What if the other executors and I are in disagreement about applying for probate?
In this case, you’ll need to sit down and work through your disagreements. If necessary, you may wish to seek legal advice or undergo mediation.
What if I don’t want to be an executor or apply for probate?
Then you don’t have to. Your options are below.
Reserve the right to apply for probate later
If you are one of several executors named in the Will, you can decide not to apply for probate now but reserve the right to apply later. Doing this is called holding “power reserved.”
If you do this, you must tell the executor or executors who will make the probate application that you’re doing so in writing. Note that doing this doesn’t stop or change the rights of the other executors to apply for probate and get on with administering and distributing the deceased’s estate.
Permanently giving up your right to apply for probate
If you don’t want to be an executor or are happy for the other executors to apply for probate and administer the deceased’s estate, you can permanently give up your rights to do so, which is known as renunciation.
If you do this, you must fill in a specific form and sign it in the presence of a witness. You may wish to take legal advice before doing so.
Appoint someone to apply for probate on your behalf
You can appoint someone – known as your 1st Attorney – to apply for probate on your behalf. Theoretically, this can be anyone, but it’s often a legal professional.
Another option is to appoint an attorney via a lasting power of attorney.
What if executors are unable to apply for probate?
It depends on the reason.
What if an executor dies?
If an executor dies themselves and the Will wasn’t updated following their death, any other named executors can apply for probate.
What if all executors have died?
If all executors have died, the beneficiary inheriting the most significant value will likely be given the right to administer the remainder of the estate.
If you’re aware that the Will of a loved one has you as the largest beneficiary, but all executors have died, you can contact LawPlus Solicitors for help in applying for probate.
What if an executor cannot apply for probate due to a mental health condition or impairment?
If an executor has a lasting power of attorney in place and is active, this should allow the person managing their affairs to apply for probate on their behalf.
When it comes to probate, it pays to use a professional
As you can see, there are many potential ifs and buts when it comes to applying for probate, even if the deceased left a clear and well-structured Will.
You can avoid any uncertainty and save yourself the hassle of valuing the estate and applying for probate yourself by instructing LawPlus Solicitors to take care of it on your behalf. Our team of probate specialists understand you’re going through a difficult time and will do whatever they can to assist you and relieve the stress and pressure you may be feeling.
Contact us here to tell us how we can help or give us a call today on 0800 327 7575.